James Boyle: Cultural environmentalism?

Ten years ago, I tried to get an article about intellectual property published in a major US newspaper. It was a hard sell. I mentioned the words “internet” and “free speech” and “access to information.” “Ah,” said the editor, “so you want to write about porn and censorship.”

Not exactly. I wanted to write about software patents and the rules of digital copyright, about proposals that would have made internet service providers strictly liable for whatever their customers did online, about persistent retrospective extensions of copyright term that locked up most of 20th century culture, even if it was commercially unavailable, just at the moment when we could dream of making it digitally available to the world.

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“But where is the free speech issue?” the editor asked. “Are these rules part of some covert effort to regulate indecency?” Free speech, it seemed, meant unfettered access to breasts – or at least digital images of them. Intellectual property was dry stuff of interest only to industry hacks. We were writing the ground rules of the information age, rules that had dramatic effects on speech, innovation, science and culture, and no one – except the affected industries – was paying attention.

My analogy was to the environmental movement which had quite brilliantly made visible the effects of social decisions on ecology, bringing democratic and scholarly scrutiny to a set of issues that until then had been handled by a few insiders with little oversight or evidence. We needed an environmentalism of the mind, a politics of the information age.

How are we doing? Well, some would see a decisive victory for the old style of industry-captured policy making without evidence to back it up. We have extended copyright term limits, increased European intellectual property rights over facts, broadened the boundaries of trademark law, made patent law come tremblingly close to cover basic ideas and algorithms – and in all those cases there was little or no evidence that the new protection was either necessary or desirable.

The title of an article I published here, “Deconstructing Stupidity,” pretty much summarises my views of that process. The United States’ ludicrous proposal for a “Webcasting Right” shows how much life there is in the old style of politics without evidence or democratic debate.

But I see grounds for optimism. The existence of forums like this one shows a recognition that these are issues which deserve a public airing, and about which reasonable people can disagree. There are now a host of civil society, scientific, and civil rights groups that deal with these issues – not just the trade associations who have long held sway. We have our equivalents of Greenpeace, but also the National Trust, or the Conservation Societies.

Industry groups have, slowly, come to understand that their interests on these issues are not monolithic; think of the differences between IBM and Microsoft, or the hardware companies and the record companies. Scientists and scholars are now more actively involved in shaping the rules that regulate their activities. And as intellectual property is reaching out to touch everyone who is a participant in digital culture creation, citizens are asking for more of a say. If the debate is not yet balanced or fair, it is at least now a debate, not a one-sided lecture from the content industry.

Three concrete events in the last year make me think that the shift will continue. The first is a matter of private action. Google’s plans to make books as searchable as the world wide web present a classic case in which the conflicts will be highlighted for society.

Can Google do this without paying permission fees to every publisher, something that would doom the project? As I explain elsewhere, I think the answer is “yes” but either way, the ideas at stake will be made concrete in a way that should transform the public debate for the better.

Second, the European Commission released a report on the Database Directive, a report I featured in a previous column. For the first time I can remember, a governmental body assessed intellectual property policy on the basis of empirical evidence, rather than faith and anecdote. In any other field – drugs, the environment, traffic safety – this would be unremarkable. In intellectual property, it is both shocking and heartening.

Finally, the US Register of Copyrights released a report on Orphan Works – copyrighted material whose owners cannot be identified or found and which is thus extremely hard to use legally. Orphan works constitute the majority of 20th century culture and the Copyright Office made an extremely balanced set of recommendations that we need to amend copyright law to make using those works easier and less risky.

These initiatives may seem banal. Arguing that making works searchable would be good, that policy should be balanced and based on evidence, that copyright should not stand in the way of the dissemination it is supposed to promote – it hardly sounds like a radical agenda. It isn’t. But from where we have been in the last 10 years, banality looks great.

So, is there a cultural environmentalist movement, and if so, is it succeeding? In March, I am delighted to say, Stanford University is having a conference on the subject. I’ll let you know how it comes out.

James Boyle is William Neal Reynolds professor of law at Duke Law School. His new co-authored work, Bound By Law, a “graphic novel” (a.k.a. comic book) dealing with the effects of intellectual property on documentary film, will be published in March.

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